LAKSHMI KANT MALVIYA Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is an application in revision by one Laxmi Kant Malviya, an Advocate practising at Gyanpur in the distt. of Varanasi, challenging his commitment to the court of Sessions for being tried for offences punishable u/Ss 419, 4.0, 467, 468 and 471, IPC. After hearing learned counsel I have no doubt that, in so far as the applicant is concerned, the order of commitment deserves to be quashed. One Smt. Dhanesara was entitled to payment of compensation money in a sum of Rs. 924/ -. In regard to the aforesaid amount an application was made along with a Vakalatnama in favour of the applicant purporting to have been executed (by thumb -impression) by Smt. Dhanesara. The amount of Rs. 924/ - was thereafter paid from the Treasury to the applicant. Thereafter a receipt for the said amount, purporting to bear the thumb -impression of Smt. Dhanesara, was obtained by the applicant in proof of payment of the said amount by the applicant to Smt. Dhanesara. Ultimately it transpired that the real Smt. Dhanesara who was entitled to receive the compensation had neither made any application for its payment through the applicant, nor had she been paid the amount. It was on the basis of the faces set forward above that an enquiry was made by a Magistrate who committed the applicant, as also one Devi Prasad, for being tried by the sessions court by the order which is the subject matter of this revision. The statement of the applicant was that Devi Prasad and one Sheo Shanker Lal had come to the applicant along with a woman whom they represented to be Smt. Dhanesara and requested the applicant to act as counsel and withdraw the compensation amount due to her, that the applicant believed Devi Prasad and Sheo Shanker's representation that the lady accompanying them was Smt. Dhanesara with the result that he made the application for withdrawal of the money in his capacity as lawyer and that after the said money was paid to the applicant he passed on the same to the said lady under a receipt which the lady executed in his favour. The thumb -impression of the executant of the Vakalatnama, purporting to be of Smt. Dhanesara was marginally attested by signature of Devi Prasad in token of assurance that the executant of the Vakalatnama was Smt. Dhanesara. In regard to the receipt for a sum of Rs. 924/ - the thumb -impression of the executant thereof, again purporting to be Smt. Dhanesara was identified by one Sheo Shanker Lal. The writing in the body of the receipt was that of Devi Prasad. The above appears to have been the entire material before the learned Magistrate on the basis of which he passed an order committing the applicant as well as Devi Prasad for trial to the court of sessions.

(2.) IT has been rightly urged on behalf of the applicant that the material referred to above was wholly insufficient to justify the view that a prima facie case has been made out against the applicant. Reliance has been placed on a judgment of the Supreme Court in the case of Hira Lal Jain v. Delhi Administration ( : 1972 A. Cr.C. 209). In that case a lawyer had gone to the length of identifying a person as the real claimant even though he was not the real claimant. The Supreme Court took the view that the co -accused of the lawyer concerned in that case must have told the lawyer that they were the real claimants and that the said lawyer must have believed them and agreed to act for them. The present case stands on a stronger; footing inasmuch as there is no allegation that the applicant represented to anybody that the person for whom he acted as a lawyer was the real Smt. Dhanesara. The material on record indicates that Devi Prasad and Sheo Shanker Lal brought a woman to the applicant, represented her to be Smt. Dhanesara and asked the applicant to apply for payment of compensation on her behalf and, after realising the same, the applicant paid it to the said lady. Learned counsel for the State has not been able to point out any material which may indicate that the applicant had knowledge or even reason to suspect that the woman brought to him and represented to him as Smt. Dhanesara was not the real Smt. Dhanesara. The applicant did what he was entitled to do in his professional capacity. It is common knowledge that lawyers act in all sorts of cases for persons whom they do not know personally at all, except in rare cases and, in the absence of anything more than the material on record of this case, there is no reason to justify the view that a prima facie case has been made out against the applicant. The commitment of the applicant must, therefore, be quashed. Accordingly, this revision is allowed and the order of the learned Magistrate dated 12 - -6 - -1970, only in so far as the commitment of the applicant for trial is concerned, is quashed. The interim order passed by this Court on 27 - -10 - -1970 staying further proceedings in the case is vacated and the record of the courts below is directed to be immediately sent back to that court so that proceedings in the case against the co -accused may not be delayed.